JUDGMENT
R.L. Anand, J.
1. By this judgment, I will dispose of two Civil Revisions i.e. Civil Revision No. 1282 of 1983 titled Lal Singh v. Ashok Kumar, and Civil Revision No. 1686 of 1983, Civil Revision No. 1282 of 1983 filed by Jagrup Singh who is none else but is the son of Shri Lal Singh aforesaid and both the Civil Revisions have been directed against the judgment dated 12.4.1983, passed by the Appellate Authority, Bhatinda, who allowed the appeal of Shri Ashok Kumar, landlord under Section 15 of the East Punjab Urban Rent Restriction Act (hereinafter called “the Act”) and set aside the order dated 29.4.1982, passed by the Rent Controller, Mansa, who dismissed the application of Shri Ashok Kumar under Section 13 of the said Act. The learned appellate authority gave three months time to the respondents S/Shri Jagrup Singh and Lal Singh to vacate the demised premises.
2. The pleadings of the parties can be described in the following manner. Shri Ashok Kumar son of Shri Om Parkash landlord filed an ejectment application under Section 13 of the Act against Shri Jagrup Singh and his father Shri Lal Singh, seeking ejectment from the demised premises which is a shop as described in the heading of the petition situated at Mansa on the allegations that respondent No. 1 Shri Jagrup Singh took the demised premises on rent at the rate of Rs. 4,200/- per year and a rent note was also executed in this regard. This tenancy came to an end on 30.6.1975. No payment of rent was made by respondent No. 1, nor he handed over the possession of the demised premises to the petitioner after the expiry of the lease term. In this manner, respondent No. 1 became the statutory tenant on the expiry of the contractual tenancy but he has not paid the rent to the landlord starting from 30.6.1981. It is further alleged by the landlord that respondent No. 1, Shri Jagrup Singh had sublet the shop in question to respondent No. 2 Shri Lal Singh, his father. Earlier, an application for ejectment was filed by the applicant against respondent No. 1 Shri Jagrup Singh but respondent No. 2 was not impleaded as a party. The Rent Controller dismissed that application but the appellate authority permitted the petitioner to withdraw his appeal with permission to file a fresh petition. Both the counsel appearing on behalf of the parties agreed for the withdrawal of the appeal. So, the present petition has been filed for ejectment against Shri Jagrup Singh and his father Shri Lal Singh on the ground of non-payment of rent as well as on the ground of subletting.
3. Notice of the petition was given to the respondents. Separate written statements were filed on their behalf. Stand of Shri Jagrup Singh, respondent No. 1, was that he never executed any rent note in favour of the landlord. According to him, he was a tenant of the shop in question at the rate of Rs. 2,000/- per year and not at the rate of Rs. 4,200/- per year as alleged by the landlord. It is further stated by respondent No. 1 that on 23.6.1976, he surrendered his tenancy to the landlord itself and also handed over the vacant possession of the shop in question to the landlord and he has further made the payment of the rent to the landlord at the time of the surrender of the tenancy. It is further pleaded by Jagrup Singh that on 1.7.1976, this very premises was let out by the petitioner Shri Ashok Kumar to his father Shri Lal Singh and the rent was enhanced from Rs. 2,000/- to Rs. 2,100/- per year and in this way, respondent No. 1 has denied his relationship of landlord and tenant with the petitioner after 22.6.1976. His categorical stand is that Shri Lal Singh, respondent No. 2 has become a direct tenant of the petitioner with effect from 1.7.1976. He further submitted that on the same ground earlier an ejectment petition was filed by the petitioner and the same was dismissed by the Rent Controller. An appeal was preferred against that order and the appellate authority allowed to withdraw that appeal. Respondent No. 2 Shri Lal Singh also filed a separate written statement and contested the petition. He took the legal objections that the present petition is barred under the principle of res judicata in view of the earlier order dated 12.3.1979. So, the petitioner is debarred to file the present application by his own act and conduct. According to this respondent, he is a direct tenant under the petitioner starting from 1.7.1976. He has tendered the arrears of rent as claimed by the petitioner along with interest and, therefore, the ground of ejectment of non-payment does not survive.
4. From the above pleadings of the parties, the learned Rent Controller, framed the following issues for the disposal of the proceedings:
1. Whether the shop in dispute was rented out @ Rs. 4,200/- per year to respondent No. 1 ?OPA
2. Whether the respondents are liable to ejectment on the ground of non-payment of rent and sub-letting? OPA
3. Whether the respondent No. 1 has paid the rent to the applicant upto 30.6.1976; and has surrendered the possession of the shop in dispute to the applicant on 22.6.1976?
4. Whether the rate of rent of the shop in dispute was Rs. 2,200A per year? OPR1
5. Whether respondent No. 2 took the shop on rent from applicant on 1.7.1976 @ Rs. 2,100/- per year? OPR
6. Whether the application is barred by principle of res judicata? OPR2
7. Whether the applicant is estopped by his act and conduct from filling the application? OPA.
8. Relief.
5. The parties led oral and documentary evidence in support of their case before the Rent Controller, Mansa, who dismissed the ejectment petition of Shri Ashok Kumar. While dealing with issue No. 1, 4 and 5 under one head, the Rent Controller held that the shop in question was not let-out at the rate of Rs. 4,200/- per year to respondent No. 1 and that the rate of rent of the shop was Rs. 2,000/- between the petitioner and respondent No. 1 and that respondent No. 2, Shri Lal Singh took the shop on rent from the petitioner at the rate of Rs. 2,100/- per year with effect from 1.7.1976. Issue No. 2 was also decided against the petitioner and it was held that respondent No. 2 is not a sub-tenant, rather, he is a direct tenant under the petitioner. The rent has been tendered by him and, therefore, there is no valid ground for ejectment. Issue No. 3 was also decided against the petitioner and it was held that Shri Jagrup Singh, respondent No. 1, has paid the rent to the petitioner up to 30.6.1976 so much so the possession of the shop in question was surrendered to the petitioner on 23.6.1976 itself. Under issues No. 6 and 7, it was further held by the Rent Controller that the present petition is certainly barred by the principle of res judicata and that the petitioner is estopped by his act and conduct to file the present petition. In this view of the matter, the learned Rent Controller, for the reasons given in para No. 5 and 17 of his judgment, dismissed the ejectment petition. These paras are reproduced as follows:-
“Since all the three issues are interconnected and inter dependent, so same are being taken up together. The basic document on which the case of the petitioner hinges about the rate of the rent is Ex.A.1 the rent note alleged to be executed by Jagrup Singh respondent No. 1 in favour of the petitioner Ashok Kumar. The genuineness of this document is and has remained a matter of controversy during the present and previous litigation before the learned Rent Controller, Mansa. The previous petition moved by the present petitioner claiming the said rate of rent i.e. Rs. 4,200/- was dismissed vide judgment Ex.R1/C dated 12.3.1979 passed by learned Rent Controller, Mansa. The specific issues were framed about the rate of the rent in the previous judgment which are as under: –
1. Whether the shop in dispute was let out at the rate of Rs. 4,200/- per year? OPA
4. Whether the rate of rent of the shop in dispute was Rs. 2,000/- per year, if so its effect? OPR
The learned Rent Controller came to the conclusion after holding the said rent note to be a forged and fabricated document and delivered his verdict that the shop in dispute was not let out at the rate of Rs. 5,200/- but the rate of the rent was Rs. 2,000/-per year and both aforesaid issues were decided against the present petitioner and in favour of the present respondent, Jagrup Singh No. 1.
6. In view of the previous judgment, the present matter under litigation is clearly a matter heard and finally, decided. The matter directly and substantially in issue in the previous litigation between petitioner and the respondent No. 1, about the rate of rent was the same. Vide judgment Ex.R.1/C the learned Rent Controller not only believed the rate of rent worth Rs. 2,000/- but at the same time held the rent note Ex.A.1 as to be a forged and fabricated document. There is no cogent ground to reopen the litigation again and again.
7. Let us now see whether the petitioner has been able to prove the rent to be Rs. 4,200/- per year on independent ground irrespective of the said judgment Ex.R. 1/C He has appeared as A.W.I and has given an oral statement about the rent to be Rs. 4,200/- chargeable from Jagrup Singh w.e.f. 30.6.1974. According to him he did not make the payment, nor gave the possession. He also proved the execution of the rent note Ex.A. 1 but the exhibition of this rent note was kept subject to objection which was to be decided during the course of argument. This rent note Ex.A.1 no doubt exhibited is unstamped and as such same is not admissible. No legal provision has been shown as to how such a document can be taken into. So this objection of learned counsel for the respondent about the exhibition of this document is certainly sustainable. The conduct of the petitioner Ashok Kumar is proved to be doubtful as per his own statement on oath. He admitted in his cross-examination that Jagrup Singh and Lal Singh are together. So he could have moved the earlier Rent Controller against both of them. He further admitted in cross-examination that he never made any entry about the rent worth of Rs. 4,200/-. This goes to show that the rent claimed by him at the rate of Rs. 4,200/- is not supported by his own account books. Petitioner when put to a question about assessment of annual rent at the rate of Rs. 2,000/- by the Municipal Committee showed his ignorance. Had it been Rs. 4,200/- he could have explained it. He admits that he does not show the said rent in his Income Tax returns and he does not know as to who is sitting on the shop in dispute and from when. This deposition is very strange, since the petitioner himself is not sure as to who is the tenant, it is not safe to rely upon such a witness about the rent claimed by him at the rate of Rs. 4,200/- per year. He further does not know if he filed a rejoinder in the previous petition and took up a plea that Lal Singh was sub-tenant. His attention was drawn to Ex.R1 where it was so recorded. He admitted that Jagrup Singh is in possession at the present. So he has shifted his earlier stand and deposed even against finding of the Court. If according to him, Jagrup Singh is still in possession what was the fun in impleading Lal Singh, Respondent No. 2 and why this subsequent petition was filed. In such circumstance testimony of the petitioner Ashok Kumar does not inspire confidence.
8. A.W.3 Jagdish Rai was another witness of rent note Ex.A.1 being scribe. He admits that he is a ‘Munim’ of Pawan Kumar and brother of the petitioner Ashok Kumar. He further admitted that he was a Munim of Om Parkash who was father of the petitioner and he remained as a Trust Worthy “Munshi” of said Om Parkash father of the petitioner for 12/13 years back, so such a witness is certainly interested in the petitioner. A.W.4 Ram Dhan has also admitted that he stood surety for Om Parkash, father of the petitioner. So he too is an interested witness. In view of above circumstances the testimony of the aforesaid witness is not worth safe reliance.
9. Nand Ram, an alleged attesting witness of the rent note Ex.A.1 was the material witness. But he has not been produced by the petitioner and the best evidence is proved to be legging behind. He appeared in previous proceedings and vide his statement copy Ex.R.1/B proved by R.W.I Sh. Waliti Ram, Reader in this case, he has falsified the claim of the petitioner about rent to be Rs. 4,200/-. He was allowed to be cross-examined by the learned counsel for the petitioner and this witness was not sure about the rent to be Rs. 4,200/- so he has already put the execution of the said rent note in doubt.
10. About question of signature of Jagrup Singh on the rent note Ex.A.1, the expert produced on behalf of the respondent i.e. Shri Jagdish Chander Singla R.W.7 vide his reasoned report Ex.R.W.7/A has opined that the questioned signature are not of the person who wrote the standard signature and they are of different person. On the other hand, the another expert is Shri K.C. Jaidka A.W.I. On the basis of his report Ex.A.1 has tried to prove the questioned signature of respondent Jagrup Singh but it transpire from his report and evidence that he is not sure about this opinion from the available data. He admitted that his difficulty was that signature at the rent deed was written at lower corner of the paper, whereas S.SI were written on the middle of the upper corner and this created a difference of flow. He had asked the Lawyer concerned to provide him standard signature but he told his inability. This admission of the expert indicates that he wanted more data to confirm his opinion which was not given to him. So, he is not sure about his opinion. In view of conflicting opinion between the experts, the other oral evidence is to be looked into to reach at a conclusion. I have gone through the reports of the both experts and I am of the independent opinion that the disputed signatures on the rent note do not tally with the specimen signatures.
11. On the other hand R.W.2 Jagrup Singh (Respondent No. 2) has deposed on oath that he took the shop on the annual rent of Rs. 2,000/- and Ex.R.1 rent note does not bear his signature/ He relinquished the possession on 22.6.1976 to Ashok Kumar and paid the rent. He categorically deposed the he did not sub-let the same to his father.
12. The above evidence has been corroborated by R.W.4 Lal Singh who deposed that he took the shop on the annual rent of Rs. 2,100/- from the petitioner Ashok Kumar and a writing was executed which was attested by Kaka Singh and Darshan Singh. His evidence has been corroborated by R.W.5 Darshan Singh who deposed about the settlement of the rent between Lal Singh and the petitioner at the rate of Rs. 2,100/- per annum. There is no ground to disbelieve this witness whose evidence has been further been corroborated by R.W.6 Kaka Singh who also discloses the rent for Rs. 2,100/-per year.
13. Petitioner Ashok Kumar vide his statement before the Court on 28.4.1980 accepted the rent from 1.7.1977 to 30.6.1981 at the rate of Rs. 2,100/- per year i.e. total of amount of Rs. 8,400/- alongwith interest and costs from Lal Singh though he has stated that Lal Singh was a sub-tenant but be accepted Rs. 9,395/- in all from Lal Singh. Had Lal Singh not been his tenant, he could have refused to accept the payment. So, this conduct of the petitioner himself discloses the rent was Rs. 2,100/-between the petitioner and Lal Singh who is a tenant under the petitioner and not Rs. 4,200/- and rent note Ex.A.1 is not only doubtful rather is a fabricated document. Hence all these three issues are decided against the petitioner.
Issue No. 2. 14. So far as plea of the non-payment of the rent is concerned, the same stands demolished on accepting the rent by the petitioner from respondent No. 2 Lal Singh vide statement dated 21.11.1980 before this Court. The rate of the rent has already been adjudicated to be Rs. 2,100/- between the petitioner and the respondent No. 2 and Rs. 2,000/- between the petitioner and respondent No. 1. Since the rent has already been accepted by the petitioner, so there is no question of ejectment on the ground of non-payment.
15. The another plea for ejectment is the subletting by Respondent No. 1 to respondent No. 2. This very plea was already taken up by the petitioner as per his rejoinder in the previous petition. The copy of said re-joinder is Ex.R.1 and as per para No. 3 of the same a plea about subletting was impleaded in the earlier litigation. A specific issue was framed which is issue No. 2 and the learned Rent Controller vide judgment Ex.R1/C observed that there was no question of subletting. So, this plea can not be raised again and again and is a matter heard and finally decided. Even otherwise die plea of sub-letting is falsified by R.W.3 Satish Kumar, a clerk of Municipal Committee. He appeared along with municipal record and deposed that during the year 1975-76 shop No. 976 was occupied by Lal Singh. He further deposed that according to this record during the year 1977-78 the owner of the same was Ashok Kumar and the occupier was Lal Singh, and the assessment of the rent was Rs. 2,100/-. So Lal Singh is not proved to be a sublettee. Though they are father and son. So, the respondents are not liable to ejectment on the alleged plea of sub-letting which is not proved. Hence this issue is decided against the petitioner.
16. Respondent Jagrup Singh has appeared as R.W.2 and deposed in an unambiguous terms that he took the same on annual rent from 30.6.1974 worth Rs. 2,000/- and he vacated the same on 22.6.1976. His evidence has been corroborated by R.W.3 Satish Kumar and there is no ground to disbelieve this witness as he appeared with municipal record. About this issue there is nothing new on record and this very issue was already adjudicated by learned Rent Controller vide judgment Ex.R.1/C Issue No. 3 of the said judgment tallies with issue No. 3 of the case in hand and that issue No. 3 was adjudicated against the present petitioner, which is as under: –
Issue No. 3. Whether the respondent paid rent up to 22.6.1976 and then surrendered possession of the shop as alleged in the written reply if so, its effect?
So it is a matter heard and finally decided. Even otherwise as discussed above the independent relationship between the petitioner and the respondent No. 2 is established to be of landlord and tenant. So on this score also this issue stands proved in favour of the respondent No. 1. Hence this issue is decided against the petitioner.
Issue No. 6 and 7. Since both these issues are interconnected and inter dependant so same are being taken together. Shri Kulwant Rai Gupta, the learned counsel for the petitioner has vehemently argued that the judgment Ex.R.1/C passed by learned Rent Controller dated 12.3.1979 is not a resjudicata in view of the statement of the counsel for the parties before the learned appellate authority and the order of the Appellate Authority Ex.A.2 because the appeal of the petitioner was dismissed as withdrawn and the learned appellate authority kept the matter open in later proceedings. On the other hand, Shri Hari Chand Jindal, the learned counsel for the respondent has controverted this argument on the ground that the appellate authority could not have permitted withdrawal of the application with liberty to file fresh because rent control Act is a complete code and the authority under this Act can not go out side its provision. On this point, an authority has been cited by Shri O.P. Vashisht, the learned counsel for the respondent No. 1 Goverdhan Dass v. Sodhi Dayal Singh, 1969 Rent Control Reporter page 938 in which it was observed as under by Hon’ble Mr. Justice D.K. Mahajan Judge our own Hon’ble High Court;
“An application for eviction of the tenant was filed on the 7th of April, 1967 on a. number of grounds. The application was rejected by the Rent Controller. An appeal was taken to the Appellate Authority and a prayer was made to the appellate authority for permission to withdraw the application with liberty to file a fresh application. This prayer was granted. It is now well settled that the Rent Controller Act is a complete Code and the Rent Controller and the Appellate Authority cannot go outside its provision to arm themselves with the powers which a court normally has under the Code of Civil Procedure. The provisions of the Code of Civil Procedure are only applicable to rent control proceedings to a very limited extent. Suffice it to say that the provisions of Order 23 Rule 1 Civil Procedure Code have not been made applicable. In fact it has been held that there is no power to remand with the Appellate Authority in the Rent Control proceedings. See inter alia the decision in Krishan Lal Seth v. Pritam Kumari, I.L.R. 1962(1) Punjab 310 it follows a fortiorit that there is no power with the appellate authority to permit withdrawal proceedings which it has filed that is a party has the right to withdraw proceedings which it has filed that is a party can withdraw in appeal. The effect of the withdrawal is a matter which does not fall for determination in this Court. No authority has been cited for the proposition that the appellate authority can permit the withdrawal of the application under Section 13 of the East Punjab Urban Rent Restriction Act with liberty to file a fresh application.”
In the light of the aforesaid guide lines it is to be seen whether the withdrawal of the petition in appeal has reopened the matter which has already been heard and finally decided vide judgment Ex.R.1/C? In this behalf, I am of the view that there is no provision for the withdrawal of the application under Section 13 of the East Punjab Urban Rent Restriction Act with liberty to file fresh application. So even if counsel for the parties made a statement before the learned Appellate Authority and order Ex.A.2 was passed. But this is not such a withdrawal which can allow the litigation to go on which has already been heard and finally decided. Thus, I am of the opinion that there is a reasonable force in the contention advanced on behalf of the respondent and present application is certainly barred by the principle of the resjudicata and the applicant is estopped by his act and conduct to file the application. Hence both these issues are decided against the petitioner.”
6. The landlord was not satisfied with the findings of the Rent Controller and he filed the appeal which was allowed by the first appellate Court for the reasons given in para No. 6 to 10 and it was held that respondent No. 2 Shri Lal Singh, is a sub-tenant. He has not been able to prove direct tenancy and that the landlord is not bound to accept the rent from a sub-tenant. It is further established that the rent of the shop was Rs. 4,200/- per year and the relationship of landlord and tenant came into existence between Ashok Kumar and Shri Jagrup Singh, vide rent note. All the findings of the Rent Controller, were set aside and the ejectment petition was allowed. The reasons of allowing the appeal as contained in paras No. 6 to 10 are as follows:-
“Mr. Singla, the learned counsel for the appellant has challenged the findings of the learned Rent Controller on number of grounds where the Rent Controller has held rent note Ex.A.1 to be inadmissible in evidence. According to the learned counsel the findings of the Rent Controller regarding the inadmissibility of the rent note Ex.A.1 on the ground:-
a) that it is un-stamped;
b) that it requires registration;
c) that the expert evidence shows that the signature on the rent note tally with the signature of Jagrup Singh respondent No. 1;
d) that earlier the Rent Controller has already answered this issue that rent note is a fabricated document,
are against the law and facts.
As regards the rent note Ex.A. 1 being unstamped is concerned that has now been decided by me and vide my separate order dated 9.4.1983 and I have allowed to make the deficiency of stamps, because that application was not seriously contested by the respondents, so the plea that the document Ex.A.1 is unstamped becomes extinct.
So far as the next point as regard to the registration of the rent note is concerned, the learned counsel for the appellants has vehemently argued that the rent note was only for a year and it does not require any registration as the tenancy was for a fixed period i.e. for one year and in support of this contention the learned counsel has relied upon A.I.R. 1939 Lahore 234 in case Sri Ram v. Mam Raj and page 558 in case Mengh Raj v. Nand Lal and Anr., A.I.R. 1940 Lahore 409 in case Nand Lal and Anr. v. Mengh Raj, A.I.R. 1954 Assam 102 in case Sajid Mia, Majumdar and Ors. v. Abdul Sattar Gani, and 1978 (1) Rent Law Reporter 489 in case Smt. Chhoni Devi v. Ram Saran Dass.
On the other hand the learned counsel for the respondents has arguedthat under Section 2 sub-section 7 of the Indian Registration Act a rent note or Kabuliat is a lease and rent note is from year to year and it requires compulsory registration under Section 17(l)(d) of the Indian Registration Act and in support of that contention he has relied upon A.I.R. 1932 Calcutta page 83(2) in case Haran Chandra Chakravarti and Anr. v. Kaliprasanna Sarkar, A.I.R. 1925 Lahore 491 in case Ata Muhammad and Ors. v. Shankar Das and Ors., A.I.R. 1935 Oudh. 90 in case (Sriman) Narain Singh v. Jagat Jit Singh Sahib and Anr., A.I.R. 1972 Allahabad 494 in case Jai Narain Dass and Anr v. Smt. Zubeda Khatoon, para 12.
I have considered the arguments advanced by the learned counsel for the parties and have gone through the rent note., The minute reading of the rent note clearly shows that it was for a fixed period of one year and the lease is not created for a period more than one year, therefore, this document Ex.A.1 does not require registration. In order to establish that the rent note requires registration it must be on the construction that the tenancy created was from year to year or for more than a year, where such is not the case even though the rent for the year or even where yearly rent is mentioned the rent note does not require registration. The lease cannot said to be reserving a yearly rent. The rent note Ex.A.1 clearly cannotes that the demised premises has been taken on rent for a year, so to my mind the rent note does not require registration, therefore, the findings of the Rent Controller qua that fact has to be set aside.
So far as the reports of the experts is concerned both the experts have given their own opinion Mr. Jaidka on behalf of the appellant has opined that the signature on the rent note Ex.A.1 tallied with the specimen signature of Jagrup Singh for which he has given his report Ex.A.1 ( Ex.A.1 seems to have been exhibited in duplicate by the Rent Controller), whereas the respondent has produced Shri Jagdish Chander as an expert who has opined that the specimen signature of Jagrup Singh does not tally with the signature on the rent note Ex.A.1 for which he has given his report Ex.RW7/A.
7. Mr. Singla the learned counsel for the appellant then argued that signatures on the rent note Ex.A.1 of Jagrup Singh should not have been held to be not of Jagrup Singh on the evidence of the expert, because the evidence of the expert is merely an opinion evidence and it cannot be relied to be the evidence of an attesting witness. For that proposition the learned counsel has made the reliance on A.I.R. 1964 Supreme Court page 529 in case Shashi Kumar Banerjee and Ors. v. Subodh Kumar Banerjee and A.I.R. 1974 Punjab and Haryana 302 in case Molar Singh v. Din Daya and Ors.
Whereas the learned counsel for the respondents has argued that there is no rule of thumb of rule of law that whether the documents expert on both sides gave opinion in favour of the parties calling them. Both the opinions should not be rejected by the Court, the Court is required to apply its own mind to find which opinion is more weightly. In support of this contention he has relied upon A.I.R. 1937 Patna 328 in case Prasad Mahta to and Anr v. Mt. Jasoda Koer.
I have given my thoughtful consideration to the arguments of both the sides. The Hon’ble Supreme Court in case Shashi Kumar Banerjee (supra) has categorically held that the expert evidence as to handwriting is opinion evidence and it can rarely, if ever, take the place of substantive evidence. In the present case there is a substantive evidence produced by the appellant in support of the execution of the rent note Ex.A.1 is that the Jagdish Rai AW3 who is the scribe of the rent note. His evidence has been rejected by the Rent Controller on the ground that he was a Munim with Pawan Kumar brother of Ashok Kumar appellant. The other witness AW4 is Ram Dhan and the evidence of Ram Dhan has been rejected by the Rent Controller that he stood surety for Om Parkash brother of the present appellant. I do not agree with the findings of the Rent Controller that both these witnesses are interested witnesses so their evidence should be discarded on that ground. Merely, working of Jagdish Rai as Munim with the brother of the appellant and Ram Dhan who stood surety for Om Parkash is no ground to reject their evidence on that score, because the evidence of the respondents consisting of RW4 Lal Singh, RW5 Darshan Singh and RW6 Kaka Singh does not inspire confidence, because of the fact that rent note was not executed in their presence. They are the neighboured and, therefore, naturally are interested witnesses. So in view of the clear evidence of the appellant, I hold that the rent note was executed by Jagrup Singh in favour of the appellant.
8. The next argument advanced by the learned counsel for the appellant is that the findings of the trial Court with regard to the fact that the earlier judgment Ex.R.1/C passed by the Rent Controller can not be taken to the findings against the appellant, because that findings was ultimately set aside by the Appellate Authority, Bhatinda, (District Judge).
Whereas the learned counsel for the respondents has vehemently argued that the earlier application of eviction allowed by the Rent Controller cannot be withdrawn even with the permission from the Appellate Court as Order 23 Rule 1 has no application to the rent proceedings so any order allowing such of withdrawal is without jurisdiction. In this way the appellant can not file the second application on the same ground and the same is hit by rule of estoppel. In support of this contention the learned counsel has relied upon 1969 Rent Control Reporter page 938 in case Goverdhan Das v. Sodhi Dayal Singh etc., 1981(1) Rent Law Reporter 704 in case Ram Dass v. Smt. Sukhdev Kaur and Anr., 1981(2) Rent Law Reporter 526 in case Shri Suraj Bhan v. Gopi Chand and Anr., 1 have carefully considered the arguments advanced by the learned counsel for the parties. The authorities cited by the learned counsel for the respondents are not applicable to the facts of the present case, because in all those cases the parties have gone in revision and the orders of the Appellate Authority was set aside, but in the present case the Appellate Authority was set aside, but in the present case the Appellate Authority has allowed to withdraw with the consent of the parties. It was further mentioned in the judgment in the following terms:-
“Nothing said therein the judgment of the Rent Controller shall effect the rights of the parties.”
This order of the Appellate Authority has not been challenged in any revision/appeal so it remains final between the parties, therefore, this argument of the learned counsel for the respondents that the second application on the same ground is not tenable, has no force. I am of the view that the present application is not hit by the rule of estoppel or res judicata. Otherwise also the order of the Appellate Authority becomes final under Section 15 sub-section 4 of the East Punjab Urban Rent Restriction Act unless the decision of the Appellate Authority is reversed/revised by the higher authorities.
9. So far as the findings of the Rent Controller as regard to respondent No. 2 is another tenant of the appellant also has no force as the rent note alleged to have been written in favour of respondent No. 2 has not been produced in Court nor any permission was sought for allowing to adduce the secondary evidence, so the tenancy in favour of respondent No. 2, cannot be proved by oral evidence for which reliance can be placed on A.I.R. 1938 Lahore 90 in case Ladha Ram Lakhi Ram v. Hari Chand and Ors., A.I.R. 1971 Punjab page 458 in case Kartar Singh v. Mohinder Singh.
10. The learned counsel for the respondents also argued that the appellant has received the rent amounting to Rs. 9,395/- from respondent No. 2 goes to show that he has admitted the tenancy of respondent No. 2. This contention of the learned counsel for the respondents also has no basis, because the order of the Rent Controller dated 28.11.1980 vide which the appellant has received the amount under protest and has not admitted respondent No. 2 to be his tenant. There too he has taken the plea that respondent No. 2 is a sub-tenant.”
7. In these circumstances, the present two revisions have been filed, one by Lal Singh and the other by his son Shri Jagrup Singh.
8. I have heard the learned counsel for the parties and with their assistance have gone through the records of the case.
9. These revisions have arisen from the judgment of reversal and in these circumstances, it may be proper for me to appreciate the evidence from the foundation itself. The case of the landlord is that he let-out the premises to Shri Jagrup Singh under a written tenancy executed on 30.6.1974 and the rent was fixed at the rate of Rs. 4,200/-per year. The tenant Shri Jagrup Singh is a defaulter in the payment of rent with effect from 30.6.1975 upto 30.6.1981. The stand of Shri Jagrup Singh is that he vacated the premises on 23.6.1976. He paid the rent upto 30.6.1976. The stand of Shri Lal Singh is that he became a direct tenant of Shri Ashok Kumar with effect from 1.7.1976 under a written tenancy. He paid the rent upto 30.6.1977 at the first instance when the alleged rent note dated 1.7.1976 was executed and thereafter, with effect from 1.7.1977 he tendered the arrears of rent in Court.
10. First of all, I would like to deal with the material documents which have come on the record and the nature of these documents. Ex.A.1 is the rent note executed on 30.6.1974. It is on a printed form. The contents of the printed form are in Punjabi. It is not scribed by a regular scribe but Shri Jagdish has come in the witness box to say that he was the scribe of this rent note and he filled in the columns of the rent note A.I. This rent note is also attested by Nand Ram and Shri Ram Dhan. Nand Ram had signed in Panjabi and Shri Ram Dhan in Landa character. It is also signed by Jagrup Singh at point “D” though Shri Jagrup Singh denies the execution and his signatures on Ex.A.1. The reading of the document would show that through this document the executant had taken the premises on rent for a period of one year. This document was un-stamped. It has been impounded lateron. The reading of the document would show that it is a Kabu-liat only for a period of one year and in these circumstances, it did not require registration and in view of the basic law reported as A.I.R. (30) 1943 Lahore 127, Mohan Lal v. Ganda Singh, and A.I.R. 1939 Lahore 234 Sri Ram v. Mam Raj, . The ratio of Full Bench of A.I.R. 1943 Lahore 127, can be quoted as follows:-
“A rent deed (not compulsorily registerable under the Registration Act) executed by a tenant in favour of a landlord, if not registered, can be relied upon to establish the relationship existing between the parties. For, it contains an admission or an acknowledgement by the person attempted to be made liable and should be the very best evidence that one can possibly have as to the oral agreement of a lease and a Court is not prevented from looking into it for this purpose.”
11. With regard to the due execution of this document, I shall deal this aspect in the subsequent portion of this judgment.
12. Ex.A.2 is the certified copy of the order dated 12.6.1980. The reading of the same would show that Shri Ashok Kumar filed the ejectment petition against Shri Jagrup Singh. One order dated 12.3.1979 was passed by the Rent Controller dismissing the application of Shri Ashok Kumar. He filed an appeal before the appellate authority and when the appeal came up for hearing before Shri Kesho Ram Mahajan, District Judge, Bhatinda, exercising the powers of the appellate authority under the Act, the proceedings took place which can be described in the following manner.
“Shri O.P. Vashisht, learned counsel for Jagrup Singh respondent states at the bar that his party is not in possession over the shop in question as correctly found by the Rent Controller. Shri Kanwar Narain, the learned counsel for the appellant and Shri O.P. Vashisht, learned counsel for the respondent further state at the bar that any other finding recorded by the Rent Controller be kept open to be decided in later proceedings if so advised. Shri Kanwar Narain, learned counsel for the appellant further states that in view thereof this appeal may be dismissed as withdrawn. I order accordingly. Nothing said there in the judgment of the Rent Controller shall effect the rights of the parties. No costs.”
13. Thus, the above would show that there is no finding on merits of the appellate authority in Ex.A.2 and that any observation made by the Rent Controller in the order dated 12.3.1979 have been made redundant. This document will help me to decide that the present petition is neither barred under the principle of res judicata nor it will amount to estoppel because the case set up by Shri Jagrup Singh is that he delivered the possession to the landlord, whereas, the case of Shri Ashok Kumar is that Shri Jagrup Singh had parted the possession to Shri Lal Singh. Since Shri Lal Singh was not a party to the earlier ejectment petition, for that reason, the appeal was withdrawn so that the landlord may file a fresh petition which has been filed in the present case on the ground of non-payment of rent and subletting. Ex.R.1 is the order of the ejectment dated 12.3.1979 vide which the application under Section 13 of Shri Ashok) Kumar was dismissed by the Rent Controller against Shri Jagrup Singh. As I had stated above, the findings of the Rent Controller as contained m Ex.R.1, have been evaporated with the passing of the order Ex.A.2 but one thing is very clear that Shri Ashok Kumar had alleged that the premises in question were let out to Shri Jagrup Singh on 30.6.1974 on a yearly rent of Rs. 4,200/- and that Shri Jagrup Singh had also executed a rent note in his favour and further Shri Jagrup Singh has fallen in arrears amounting to Rs. 12,600/-starting from 30.6.1975 to 29.6.1978. The defence of Shri Jagrup Singh, at that time, also was that the shop in question was let out by the petitioner to Shri Lal Singh by enhancing the rent from Rs. 2,000/- to Rs. 2,100/- and that the petition has become infructuous as he was not in occupation of the shop in question.
14. Ex.R.1 is yet another document which is a rejoinder filed by Shri Ashok Kumar to the written statement of Shri Jagrup Singh. A.1 (Duplicate A.1) is the report of the Handwriting Expert, who has been examined by the petitioner. This expert deposed that the signatures appearing on Ex.A.1 rent note is that of Shri Jagrup Singh, respondent No. 1 and those signatures tally with the signatures appearing on the back of RW2/2. Those signatures were given by Shri Jagrup Singh when he was served in the present petition by the Process-server along with Shri Lal Singh. The signatures of Shri Jagrup Singh and Shri Lal Singh are on the back of the summons. This will also give an inference that when Shri Lal Singh signed he knew it that his son Shri Jagrup Singh is also receiving the summons at the same time. RW7/A is the report of the Handwriting Expert examined by the respondent who was of the opinion that disputed signatures are not written by the person who wrote the standard specimen signatures and are of the two different persons and hands. The oral evidence which has been examined by the landlord was PW1 Shri K.C. Jaidka who came in support of rent note Ex.A.1 and his expert evidence shows that the disputed and the standard signatures are of the same person. Precisely, Shri Jaidka, stated as follows:-
“In my opinion, there are natural variations in the signature of the same person and as regards Siharithe before Singh there is a difference in the beginning.”
15. Ashok Kumar, landlord, appeared as AW-2. He proved his tenancy between him and Shri Jagrup Singh at the rate of Rs. 4,200/- vide rent note Ex.A.1. He further deposed that the rent note was executed by Shri Jagdish Kumar and was attested by Nand Ram and Ram Dhan. He also stated that the possession of the shop in question has been handed over to Shri Lal Singh who was never his tenant. AW-3 Jagdish is the scribe of the rent note Ex.A.1. AW-4 is Ram Dhan who is the other attesting witness of the rent note. Walyatai Ram is RW1. Jagrup Singh, respondent appeared as RW-2. Satish Kumar, appeared as RW-3, Lal Singh RW-4, Darshan Singh RW-5, Kaka Singh RW-6 and Jagdish Chander Singla Handwriting Expert appeared as RW-7. The stand of Jagrup Singh is the same as taken in the written statement. Similarly, the stand of Shri Lal Singh is in accordance with the written statement. Darshan Singh and Kaka Singh deposed that a rent note was allegedly executed when the shop in question was let out by Ashok Kumar to Shri Lal Singh on 1.7.1976 so much so a rent for one year was given to the landlord up to 30.6.1977. This fact is being disputed by the landlord.
16. The point which survives for determination in this case is now that it is a case of version versus controversion. If it is established that Shri Jagrup Singh surrendered the possession of the shop in question to Shri Ashok Kumar on 23.6.1976 and had paid rent up to 30.6.1976 and further it is established that Ashok Kumar let out the premises to Shri Lal Singh on 1.7.1976 at the rate of Rs. 2,100/- per year and that Shri Ashok Kumar had received the rent upto 30.6.1976, this petition is liable to be dismissed. If it is not established that there was any direct tenancy between Ashok Kumar and Shri Lal Singh as claimed by the tenant Shri Lal Singh-respondent No. 2, it has to be reasonably inferred that Shri Jagrup Singh had parted the legal possession of the shop in question to Shri Lal Singh, his father, by stepping down from his tenancy rights, if any and in that situation, a reasonable inference can be drawn that Shri Lal Singh is occupying the property in the capacity of a sub-tenant as he has the exclusive control and possession over the shop in question. The plea of Shri Jagrup Singh is that he had already surrendered the possession to Shri Jagrup Singh is that he had already surrendered the possession to Shri Ashok Kumar on 23.6.1976. If this is not established, this has to be inferred that Shri Jagrup Singh washed his hands and parted the exclusive possession to Shri Lal Singh who has taken a very dangerous plea to my mind of direct .tenancy between him and Shri Ashok Kumar. The ancillary point for determination would be about the execution of the rent note Ex.A.1 between Shri Ashok Kumar and Shri Jagrup Singh and further this Court is also look into whether any rent note was executed on 1.7.1976 or a defence has been created by Shri Lal Singh only to defeat the ejectment petition. There is no document of writing that on 23.6.1976 Shri Jagrup Singh surrendered the possession to Shri Ashok Kumar. Also, there is no evidence on the record to show that Shri Jagrup Singh made any payment of rent on 30.6.1976. If the initial relationship of landlord and tenant had been created between Shri Ashok Kumar and Shri Jagrup Singh has parted the exclusive possession to his father Shri Lal Singh who was holding the premises in his personal and individual capacity, strong inference of subletting has to be drawn. In all probabilities, a person who wants relieve himself of the liability would try to get a written proof from the landlord so that he may not be involved in any difficulty at a subsequent stage. Shri Jagrup Singh has not taken any receipt or writing from the landlord, dated 23.6.1976 or 30.6.1976 regarding the delivery of the possession or regarding the payment of the rent and, therefore, it is not established on the record that on that day, he surrendered the possession. Rather, it is the admitted case of Shri Jagrup Singh even before the appellate authority in Ex.A.2 that he had delivered the possession of the shop in question. If he had not delivered the possession to Shri Ashok Kumar, he must have delivered the possession to Shri Lal Singh and had divested himself from the legal possession of the shop. Thus, Shri Jagrup Singh had created sub-tenancy against the written consent of the landlord and is liable to be ejected alongwith Lal Singh.
17. Here, I would like to discuss the position of the rent note. Mr. Gupta, learned counsel appearing on behalf of the petitioner, Shri Lal Singh, was highly critical on the conduct of Shri Ashok Kumar and submitted that rent note A.1 has been fabricated in connivance with Shri Nand Kumar and Shri Ram Dhan, who are interested witnesses of the landlord. In support of his contention the learned counsel has taken me to the evidence of Shri Jagdish Kumar and Ram Dhan. I have not been able to formulate any opinion that they have been as false witnesses by the landlord. When a document is genuinely created or comes into existence in the normal set-up circumstances, the beneficiary under the agreement always try to get the attestation of his known persons so that in case of difficulty those witnesses may come to his rescue but it cannot be said that they are false witnesses. A reading of the rent note would show that Shri Jagrup Singh took the property on rent at. the rate of Rs. 4,200/r per year starting from 30.6.1974 from Shri Ashok Kumar. Admittedly, this man has not tendered the arrears of rent with effect from 30.6.1976 to 30.6.1081. In this view of the matter, Shri Jagrup Singh is a defaulter and, therefore, the landlord is entitled to seek ejectment and to recover the possession of the demised premises from, Shri Jagrup Singh and from his subtenant Shri Lal Singh.
18. In this very context, I will like to deal with the plea of Shri Lal Singh as to whether any rent note dated 1.7.1976 was executed on that day in favour of Shri Ashok Kumar. The case of Shri Lal Singh is that rent note was executed. The original is in the possession of Shri Ashok Kumar. A rent of one year has been paid on 1.7.1976 and this rent note was executed in the presence of two persons namely, Kaka Singh and Dharam Singh. It was also the case of Shri Lal Singh that earlier the rent was Rs. 2,000/- per year which has been enhanced to Rs. 2,100/- at the titile of the creation of the alleged direct tenancy. It is very easy to bring the two witnesses but on broad probability this Court is of the opinion that the defence is false. Shri Lal Singh has not obtained any receipt independently with regard, to the alleged payment of Rs. 2,100/- to the landlord. It is the admitted case of Shri Lal Singh that the said rent note was never scribed by any regular scribe. Also there is no evidence that any stamp worth the name was purchased in order to execute any rent note in favour of the landlord. Why Shri Ashok Kumar, let out the property only by enhancing Rs. 100/- per year in favour of Shri Lal Singh. Meaning thereby, that Shri Ashok Kumar had enhanced Rs. 8/- only per month. It does not look to be probable as to why Shri Ashok Kumar landlord will lease out the property to the father of Shri Jagrup Singh. It is not the case of Shri Jagrup Singh or Shri Lal Singh that Shri Lal Singh was doing business jointly With Jagrup Singh. Also it is not the case of Shri Lal Singh that the tender of the rent has been made on behalf of the Jagrup Singh. Rather, the defence is very bold but drastic. If Shri Jagrup Singh had not surrendered the possession on 23.6.1976 and if no direct tenancy came into existence between Lal Singh and the landlord on 1.7.1976 the conclusions are irresistible and are written on the wall itself. Both these aspects have not been proved in this case. Jagrup Singh delivered the possession and control of the premises to Shri Lal Singh who started his business in his independent capacity and his status became that of a sub-tenant irrespective of the fact that earlier his son of Shri Jagrup Singh was a tenant. This Court is cognizant of the fact that presumption of sub-tenancy is remote between close relations like father and son but it is not the law of the land that in no circumstances, the inference of such tenancy cannot be drawn between son and father. Every case will depend on its own facts. In the present case, I have drawn an inference that Shri Lal Singh became a sub-tenant and not a direct tenant and any tender of rent accepted under protest by the landlord cannot improve the case of respondent No. 2.
19. Here I would like to discuss with the case law, which has been relied upon by the counsel for the parties.
20. The learned counsel Shri Gupta, made an endeavour to convince me that this court should hold that the present petition under Section 13 of the Act was barfed by the principle of res judicata and in support of his contention he placed reliance on A.I.R. 1920 Patna 63, Rama and Ors. v. Janak Singh, I.L.R. 1917 Calcutta 367 Kali Prasanna Sil v. Panchanan Nandi, A.I.R 1918 Patna 575, Satyabadi Gountia and Anr. v. Bediadhar Bar Panda and Ors., . I have considered these citations and in my opinion, these are not applicable to the facts at tall. In order to constitute res judicata the decision must be on merits. The order Ex.A.2 dated 12.6.1980, clearly makes a mention that nothing said in the judgment dated 12.3.1979 of the Rent Controller shall affect the rights of the parties. Meaning thereby that the judgment of the Rent Controller has no bearing and that was the reason that the landlord was given the right to file fresh application.
21. The counsel for the petitioner Shri Gupta, then placed reliance on A.I.R. 1995 Supreme Court 1607, S. V.R. Mudaliar v. Mrs. Rajabu F. Buhari, and submitted that the judgment of the appellate authority has taken note of the reasons given by the trial Court when it has dismissed the petition under Section 13. The cited judgment is not helpful to him. I have already quoted above the reasons of both the Courts. This Court has independently assessed the evidence and is of the opinion that there is no proof of direct tenancy as allegedly propounded by Shri Lal Singh on 1.7.1976. The counsel Shri Gupta, also placed a reliance on (1982)84 P.L.R. 237 Amar Singh v. Tej Ram, and submitted that oral evidence can be led by the petitioner Shri Lal Singh with regard to the rent note allegedly executed on 1.7.1976 when the landlord is withholding that document. I have held above that there is no satisfactory proof that any written tenancy was created on 1.7.1976. The defence has been taken up for the sake of defence in order to deprive the landlord of the rent as well as his possession. Plea of direct tenancy is a false. It is not proved at all. Probabilities are working against Shri Lal Singh. Reliaiice was also placed on A.I.R. 1972 Orissa 200, Collector, Cuttack v. Rajib Bhol, Head Note A & B and the reasons given in para No. 8 of the judgment. The judgment is of the mark.
22. Also reliance was placed on A.I.R. 1980 Supreme Court 531, Murarilal v. State of M.P., and my attention was invited to para No. 11 and 12 of the judgment. The learned counsel for the respondent also invited my attention to A.I.R. 1964 Supreme Court 529,’ Shashi Kumar Banerjee and Ors. v. Subodh Kumar Banerjee, sub-note (b). I have considered both these judgments. A reading of these judgments would show that the basic position with regard to the evidence of the handwriting expert is that it is an opinion evidence. It is not substantive piece of evidence and as such it cannot be used for the purpose of corroboration. The evidence of the expert cannot be acted upon unless it is substantially corroborated. Expert versus Expert have been examined by the parties. There is a direct evidence of Shri Ram Dhan and Jagdish with regard to the execution of the document A.1., the rent note executed by Shri Jagrup Singh. It is true that Shri Jagrup Singh denied his signatures but there is also one thing which is very evident that at the first instance Shri Jagrup Singh signs in Panjabi at the back of the summons. Lateron he became vigilant and he started signing in English. He signed in English on the written statement. He signed in this very language on the power of attorney. At any point of time, he signed in Panjabi after Ex.RW2/B and Ex.RW.3/A. The purpose is obvious. He wanted to behave in such a manner so that the justice may not come out. The Expert witnesses are generally interested. They try to defend their clients. I have to pick up one set of evidence either of the plaintiff or of Shri Lal Singh. The probabilities are leaning in favour of the landlord.
23. In view of the above, I am of the considered opinion that the reasons advanced by the appellate authority in allowing the ejectment petition were legal and sound and biased on correct appreciation of evidence and law. In this view of the matter, I do not see any merit in both these revisions.
24. Before I part with this judgment, I may also make a mention that there was hardly any necessity on the part of Shri Jagrup Singh to file his revision as his stand was that he had already shed his responsibility by allegedly delivering the possession of the shop in question on 23.6.1976, which is not proved.
25. Both these revisions are hereby dismissed with no order as to costs. The petitioners are granted one month’s time to vacate the demised premises from today, failing which, it will be open to the landlord to get the possession of the shop in question through Court of law.
